Com. v. Kearns, J.

• Court: Superior Court of Pennsylvania
• Decided: August 31, 2021
• Docket: 231 EDA 2021
• Status: Unpublished

Opinion

J-S25041-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JUSTIN W. KEARNS : : Appellant : No. 231 EDA 2021

Appeal from the Judgment of Sentence Entered December 18, 2020 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0000068-2012

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED AUGUST 31, 2021

Justin W. Kearns (Kearns) appeals from the judgment of sentence of

297 days of back time imposed by the Court of Common Pleas of Bucks County

(trial court) after he violated his parole. He argues that the court erred in

failing to give him credit for time served and in finding that he violated his

parole. We vacate and remand for the limited purpose of allowing the court

to apply the appropriate credit for time served. We affirm in all other respects.

I.

We take the following pertinent facts from our review of the certified

record and the trial court’s April 13, 2021 opinion. On August 7, 2012, Kearns

entered a guilty plea to felony aggravated assault and conspiracy to commit

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* Retired Senior Judge assigned to the Superior Court. J-S25041-21

aggravated assault, and misdemeanor crimes of simple assault, recklessly

endangering another person, disorderly conduct and harassment.1 The trial

court sentenced him to a term of not less than two nor more than four years’

imprisonment, plus a consecutive term of four years’ probation.

On January 24, 2020, the trial court held a violation of probation

hearing. Kearns agreed to the probation violation. His probation was revoked

and he was sentenced to serve a term of incarceration of not less than time

served nor more than twelve months, with immediate parole. The court also

ordered that he obtain mental health and drug and alcohol evaluations and

that he comply with all treatment recommendations.

On August 6, 2020, Bucks County Adult Probation and Parole filed a

praecipe for technical parole violation and requested a Gagnon I2 hearing.

The praecipe cited Kearns’s failure to report as directed, refusal to sign his

case plan, failure to comply with treatment conditions and to attend a

treatment session, use of controlled substances, refusal to answer his

probation officer’s questions, his failure to supply treatment information, his

rescission of his release for treatment information, his failure to supply his

probation officer information regarding his daughter or employment and his

1 18 Pa.C.S. §§ 2702(a)(1), 903, 2701(a)(1), 2705, 5503(a)(1) and 2709(a)(1), respectively.

2 Gagnon v. Scarpelli, 411 U.S. 778 (1973).

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recording of his probation officer without permission. (See Gagnon I Hearing

Praecipe, 8/06/20, at 1). On September 15, 2020, Kearns was incarcerated

pending a Gagnon II violation of parole (VOP) hearing, which occurred on

December 18, 2020.

At the VOP hearing, the Commonwealth presented the testimony of

Kearns’s parole officer, Leslie Moore. P.O. Moore testified that Kearns was on

state supervision at the time of the 2012 conviction in this matter. After

probation was revoked for a violation and he was immediately paroled on

January 24, 2020, he moved without permission. She testified that Kearns

has not complied with mental health treatment, and she was unable to confirm

the status of his drug and alcohol treatment because he improperly rescinded

his release at the drug and alcohol treatment facility. Kearns recorded her on

his cellphone without her permission and failed to answer routine questions,

telling her the answers were none of her business. He failed to report and

missed phone contacts. She recommended that Kearns be found in violation

of his parole and incarcerated to serve the remaining 297 days of his sentence.

(See N.T. Hearing, 12/18/20, at 2-5).

Kearns testified on his own behalf, denying that he had violated the

terms of his parole, claiming that P.O. Moore was “out to get [him].” He stated

that he was compliant with all treatment recommendations and that he had

received a letter from his treatment providers that they had “closed the case.”

He did not provide the letter to the court. He also maintained that he attended

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weekly treatment sessions, although he did not remember the exact dates

and did not provide proof, stating that he could get it. (Id. at 6-8, 10-12).

The court found Kearns in violation of his parole and sentenced him to

serve his 297 days of back time. Kearns filed a motion to reconsider sentence

on December 23, 2020. He argued, in pertinent part, that the court erred in

failing to give him credit for time served, the excessiveness of his sentence

and the insufficiency of the evidence. On December 29, 2020, the court

denied Kearns’s motion without a hearing. He timely appealed. He and the

trial court have complied with Rule 1925. See Pa.R.A.P. 1925.

II.

A.

Kearns first maintains that the court erred in refusing to give him credit

for time served where he was detained in this matter3 from September 15,

2020, to December 18, 2020, where he was not given credit for the time in

3 Kearns states that he also was incarcerated during this time on an open criminal matter. (See Kearns’s Brief, at 12). Neither the Commonwealth nor the court mention that this pre-sentence incarceration was for any other case, although P.O. Moore mentioned that there are charges pending in another matter, which did not form the basis for the parole revocation. (See Trial Court Opinion, 4/13/21, at 4); (Commonwealth’s Brief, at 6-7); (N.T. Hearing, at 2). However, this does not affect our disposition because, even if he also was incarcerated on another matter, he would still be entitled to credit for time served if it was not awarded elsewhere. See Commonwealth v. Smith, 853 A.2d 1020, 1026 (Pa. Super. 2004).

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any other case.4 (See Kearns’s Brief, at 9-12). Both the trial court and the

Commonwealth agree, with the Commonwealth requesting that we remand

this matter for resentencing to allow the trial court to award the appropriate

time credit. (See Trial Ct. Op., at 4); (Commonwealth’s Brief, at 4-7).

“It is well established that there is no constitutional right to credit for

time served prior to trial or sentence.” Com. v. Johnson, 967 A.2d 1001,

1003 (Pa. Super. 2009) (citation omitted). “Statutes which afford pre-

sentence confinement credit are founded upon the recognition that an indigent

offender, unable to furnish bail, should serve no more and no less time in

confinement than an otherwise identically situated offender who succeeds in

furnishing bail.” Id. (citation omitted). Credit for time served is governed by

42 Pa.C.S. § 9760, which provides, in pertinent part:

(1) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct on which such a charge is based. Credit shall include credit for time spent in custody prior to trial, during trial, pending sentence, and pending the resolution of an appeal.

***

(4) If the defendant is arrested on one charge and later prosecuted on another charge growing out of an act or acts that ____________________________________________

4 “A claim asserting that the trial court failed to award credit for time served

implicates the legality of the sentence.” Commonwealth v. Gibbs, 181 A.3d 1165, 1166 (Pa. Super. 2018) (citation omitted). Issues relating to the legality of a sentence are questions of law and our standard of review over such questions is de novo and the scope of review is plenary. Commonwealth v. Aikens, 139 A.3d 244, 245 (Pa. Super. 2016).

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occurred prior to his arrest, credit against the maximum term and any minimum term of any sentence resulting from such prosecution shall be given for all time spent in custody under the former charge that has not been credited against another sentence.

42 Pa.C.S. § 9760(1) and (4).

It is undisputed that Kearns spent time in custody prior to his VOP

hearing and the imposition of his sentence, and that there is no indication that

he was given credit for this time in any other matter. Hence, we agree that

he is entitled to credit for any time he was incarcerated prior to his VOP

hearing and sentencing. See Johnson, supra at 1003. Accordingly, we

vacate and remand for the court to determine the exact amount of time served

Kearns should be credited and to amend the judgment of sentence

accordingly.

B.

Next, Kearns challenges the sufficiency of the evidence to support the

revocation of his parole where the Commonwealth failed to establish that he

was in violation since it did not “offer competent evidence that he violated

specific conditions of his sentence and establish that parole is no longer a

viable means of rehabilitation.”5 (Kearns’s Brief, at 17; see id. at 9, 13-17).

5 “Following parole revocation and recommitment, the proper issue on appeal

is whether the revocation court erred, as a matter of law, in deciding to revoke parole and, therefore, to recommit the defendant to confinement.” Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa. Super. 2008) (citations omitted). “An assertion that the trial court erroneously imposed an illegal (Footnote Continued Next Page)

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He posits that his “uncontradicted testimony regarding his desire for and

participation in treatment indicates that parole remains a viable means of

rehabilitation and deterring future antisocial conduct.” (Id. at 17).

“[T]he purposes of a court’s parole-revocation hearing—the revocation

court’s tasks—are to determine whether the parolee violated parole and, if so,

whether parole remains a viable means of rehabilitating the defendant and

deterring future antisocial conduct, or whether revocation, and thus

recommitment, are in order.” Kalichak, supra at 290 (citation omitted). The

Commonwealth must establish the parolee violated his parole by a

preponderance of the evidence and, once it does so, the decision to revoke

parole is in the trial court’s discretion. See id. at 291. Technical violations

such as failure to report or not living at a given address are alone sufficient to

support the parole revocation. See Commonwealth v. Smith, 534 A.2d

120, 121 (Pa. Super. 1987), appeal denied, 542 A.2d 1368 (Pa. 1988).

In the instant case, the trial court explains that:

In the case at bar, this court accepted the Commonwealth’s version of the facts as a sufficient basis to find [Kearns] in violation of his parole. [He] demonstrated a complete disregard for the terms of his parole when he failed to comply with the simplest of conditions such as signing case plans or answering routine questions from his parole officer. He demonstrated a lack of interest in drug and alcohol treatment when he would not sign releases to allow his parole officer to confirm his attendance yet admitted to this court that he had a drug problem. Further, ____________________________________________

sentence is a question of law and, as such, our scope of review is plenary and our standard of review is de novo.” Commonwealth v. Williams, 980 A.2d 667, 672 (Pa. Super. 2009), appeal denied, 990 A.2d 730 (Pa. 2010).

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[Kearns] already served time in a State Correctional Facility in this matter and it clearly did not act as a deterrent for future, disruptive behaviors. Therefore, in consideration of the numerous violations [Kearns] committed, the Court found that parole would not be able to rehabilitate [him] and recommitment to the Bucks County Correctional Facility was appropriate.

(Trial Ct. Op., at 4) (some capitalization omitted).

We discern no error or abuse of discretion. P.O. Moore testified to

several parole violations by Kearns, including moving without permission,

failing to comply with mental health treatment recommendations, rescinding

his release at his drug and alcohol facility rendering her unable to confirm

treatment, recording her without permission, failing to answer P.O. Moore’s

routine questions, absconding supervision, failing to report to the parole

department and refusing to sign case plans. She recommended that parole

be revoked. (See N.T. Hearing, at 2-5).

Based on the foregoing, we conclude that the trial court neither erred in

finding that the above demonstrated that Kearns committed violations nor

abused its discretion in revoking parole, particularly where the technical

violations such as failure to report and moving without permission were alone

sufficient to support the revocation. See Smith, supra at 121. Although

Kearns argues that he “provided specific and concrete information regarding

when and where he attended treatment,” (Kearns’s Brief, at 16), the record

reflects that he did not provide any dates or evidence. (See N.T. Hearing, at

8, 11). Instead, his main contention appeared to be that P.O. Moore was “out

to get [him].” (Id. at 7, 11). Further, although he maintains that the

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Commonwealth failed to prove that treatment was recommended, his own

testimony concedes that he has a drug problem for which he attended

treatment. (See id. at 12). The only reason that P.O. Moore could not confirm

the extent of the treatment is because he improperly rescinded his release

that enabled her to obtain the information.

It was within the discretion of the court to resolve any conflicts in

testimony, and it had the discretion to believe all, some or none of the

testimony in making its credibility determination. We will not disturb its

finding where it is supported by the record. See Commonwealth v.

Ramtahal, 33 A.3d 602, 609 (Pa. 2011).

Accordingly, we conclude that the trial court properly revoked Kearns’s

parole due to his technical violations where it found it no longer remained a

viable means of rehabilitating him. See Kalichak, supra at 290-91. His

second issue lacks merit.

In summary, we vacate the judgment of sentence and remand for the

limited purpose of allowing the court to award Kearns with the appropriate

credit for time served. We affirm in all other respects.

Judgment of statement vacated. Case remanded. Jurisdiction

relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/31/2021

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